seem to recognize the present proceeding by mandamus as a civil action, with the relator as the plaintiff, and the respondent as the defendant. * * * 20 STATE ex rel. COTHREN v. LEAN. (Supreme Court of Wisconsin, 1859. 9 Wis. 279.) PAINE, J.21 This was an application for a writ of mandamus, to compel Joseph Lean, the register of deeds of Iowa county, to keep his office at Mineral Point. An alternative writ was issued at the last term, and on the return day counsel appeared on behalf of Lean, and moved to quash the writ, for alleged defects in the petition on which it was granted. This motion was argued in the absence of the relator, but was not disposed of, and owing to the changes of the judges composing this court a reargument was ordered. At the present term the relator has filed a motion to strike from the files the motion to quash, and also another motion for a peremptory writ. These three motions were argued together, and will now be disposed of. In support of the motion to strike off, it was urged that, after an alternative writ of mandamus is once issued, the person to whom it is directed can only make return according to its mandate, and cannot be permitted to move to quash the writ, even for alleged defects in 20 The rest of the opinion is omitted. Accord: People ex rel. Livingston v. Pacheco, 29 Cal. 210 (1865). See State ex rel. Green Bay & M. R. R. Co. v. Jennings, 56 Wis. 113, 119, 14 N. W. 28 (1882): “It is true that at common law the words 'civil action' would not include writs of mandamus. Commonwealth v. Commissioners of Lancaster, 6 Bin. (Pa.). 9; also Chinn v. Trustees, 32 Ohio St. 236, 237. Mr. Bouvier says: "The vital idea of an action is a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or the law.' On the other hand, a mandamus, at the common law of England, was denominated a prerogative writ, and was originally issued out of the Court of Chancery, but subsequently out of the Court of King's Bench, because the king originally sat in those courts in person, and aided in the administration of justice. Hence, in theory at least, it was not so much the individual seeking redress as the king who was the actor. In this country it cannot be a prerogative writ; but, nevertheless, partakes of the nature of such a writ, and under the Constitution and laws is issued by the courts. Attorney General v. Railroad Companies, 35 Wis. 512 et seq. Beyond question it is, however, in a proper case, in substance a civil remedy for the citizen who has been deprived of a clear legal right, notwithstanding it is commenced and prosecuted in the name of the state. The state is only a nominal party. Brower v. O'Brien, 2 Ind. 431; State v. Commissioners, 5 Ohio St. 502. The word 'suit' is frequently used in practice as synonymous with the words 'civil action,' but, nevertheless, it seems to be more comprehensive, and includes proceedings in chancery as well as law. * ** So it has been held to include proceedings by mandamus. McBane v. People, 50 Ill. 506, 507; Felts v. Mayor, 2 Head (Tenn.) 650. * * See Brown v. Crego, 29 Iowa, 321 (1870). 21 Only a portion of the opinion of Paine, J., is printed. substance in the petition on which it was issued. But we are satisfied that as a matter of practice, in such cases, a motion to quash is entirely proper. Alternative writs are usually granted without much examination. The papers are read, and, if it appears clearly that the petitioner is not entitled to the relief sought, the writ is refused. Otherwise it has been usual to allow it to issue, leaving the merits of the application to be determined when presented by those familiar with them, and when both sides should be represented. And this course is almost a necessity. Applications for the writ are ex parte. The questions involved are frequently complicated, and the solutions difficult. And it would. be impossible for the court to give them such examination that the issuing of the writ should be held at all conclusive on the sufficiency of the application. And a motion to quash is a proper mode of testing that sufficiency. It performs the functions of a demurrer to a declaration, and we think, if a writ should be issued on an application defective in substance, the person to whom it was directed should have some method of raising that question before being compelled to And the authorities cited by the counsel for the respondent show that a motion to quash has been resorted to for that purpose, both in this country and in England. We think the practice proper, and the motion to strike off must therefore be denied.22 * * The motion to quash the alternative writ is therefore denied. But as we have held the filing of such a motion to be proper practice, to test the sufficiency of the application, we think, when the motion. is overruled, the respondent should have further time to answer if he desires it. If further time is desired, the respondent may answer within twenty days, and the peremptory writ is denied. If no further time to answer is desired the peremptory writ may issue. PAINE, J. Since the former decision on the several motions then pending, the respondent has filed a return, to which the relator has demurred. On the argument the question was raised whether or not the allegations in the petition, on which the writ was issued, which are not denied by the return, are to be considered as true. The respondent's counsel contended that they were not, and that the return is the primary pleading in the case, and that on a demurrer to that nothing was to be taken as true except the allegations of the return itself. But we do not think this view correct. On the contrary, we are satisfied, both from the reason of the thing and from the authorities on the subject, that the affidavit or petition on which the alternative writ issues, the allegations of which are incorporated into the writ itself, performs the office of a declaration. It sets forth the grounds relied on by the prosecutor, as entitling him to the peremptory writ, and it is incumbent on the respondent, by his return, to sufficiently answer those allegations, and negative the prosecutor's right. The 22 See Cyc. "Mandamus," p. 463. function of the return is not simply to show what would amount to a prima facie right in the respondent, in the absence of any allegation to the contrary; but it is to show a right to refuse obedience to the writ, in view of the allegations it contains. And if it does not do this, it is demurrable. And the very object of a demurrer to the return is to test its sufficiency as an answer to the allegations of the writ; and it is obvious that this can only be done by assuming all the material allegations of the writ not denied, nor confessed and avoided, to be true. The plea or answer which the plaintiff may put in to the return is designed to enable him to traverse or confess and avoid it, when it, in the first instance, sufficiently answers the writ, and not to repeat material allegations previously made, which had been left entirely unanswered, in order to obtain the benefit of them. We think, therefore, that the demurrer to the return raises the question of its sufficiency, and of the sufficiency of the relation, and that in disposing of it, not only the return, but every material allegation in the relation not denied nor confessed and avoided, is to be taken as true. * * *23 SECTION 49.-SAME-THE RETURN PEOPLE ex rel. AMERICAN CENT. RY. v. SUPERVISOR AND (Supreme Court of Illinois, 1869. 51 Ill. 191.) WALKER, J.24 * * * The demurrer questions the sufficiency of the return as a defense to the prayer of the information. The alternative writ stands for a declaration, and the return as a plea. Like other pleas, it must state facts positively and distinctly. The return should set out the facts fully, so as to enable the relator to traverse them. It is not sufficient to aver conclusions of law. If facts are not stated, or if insufficiently stated, the plea will be held bad. Greater certainty is required in a return than in an ordinary plea in bar. Tapping on Mandamus, 352, 370; Moses on Mandamus, 210. In the case of People v. Kilduff, 15 Ill. 492, 60 Am. Dec. 769, it was held that every intendment would be made against returns which do not answer important facts. 23 See Cyc. "Mandamus,” p. 453. 24 Only a portion of the opinion of Walker, J., is printed. The return does not deny, and we must hold it to be true, that an election was held, judges and clerks appointed, and the majority of the votes cast were in favor of subscription. It does not deny that the proper requisition for an election was made, or that notices were given ten days before the election. It, however, avers that the election was not called, held and conducted according to the requirements of the act of 1859, in this: That there were no legal notices posted for the election ten days previous thereto, as required by the act, nor were judges and clerks legally appointed to hold the election. There is no effort to specify in what the notices lacked to conform to the legal requirement, or in what the appointment of such officers violated the law or failed to conform to its requirements. From what is averred in reference to these acts, the facts are not stated so that the court can determine whether they are sufficient. In this the pleader has only averred his conclusion as to the illegality of the acts thus set up and relied upon to prevent the peremptory writ from issuing. The return should have specified the particular facts which rendered the notices illegal and the acts omitted in appointing the judges and clerks. * * * 25 SECTION 50.-SAME-INTEREST REQUIRED TO BE SHOWN PIKE COUNTY COM'RS v. PEOPLE ex rel. METZ. (Supreme Court of Illinois, 1849. 11 Ill. 202.) This was a proceeding by mandamus in the Pike county circuit court, instituted by the relator against the county commissioners of that county, to compel the payment to him of the sum of $125, and interest, which had been originally appropriated by the Legislature to the county, and by a subsequent law set apart for the improvement of the navigation of McKee's creek, in said county, to be expended by the relator. TREAT, C. J.26 It is contended that the relator has not such an interest in the fund sought to be recovered as will authorize him to prosecute this peculiar remedy. The question, who shall be the relator, in an application for a mandamus, depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the 25 See Commonwealth ex rel. Thomas v. Alleghany County, 37 Pa. 277 (1860). 26 Only a portion of this case is printed. right enforced must become the relator. He is considered as the real party, and his right to the relief demanded must clearly appear. A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he is interested, as a citizen, in having the laws executed, and the right in question enforced. See the case of People v. Collins, 19 Wend. (N. Y.) 56, where this question is much discussed, and the foregoing conclusions are clearly stated. No doubt is entertained of the right of Metz to become the relator, and pursue this remedy. The object of the suit is not a matter of individual interest, but of public concern. Any citizen of the county, especially of the locality interested in having the improvement prosecuted, could become the relator, and obtain the mandamus. There is a manifest propriety in permitting Metz to give the information, and conduct the proceeding. He has the direction of the improvement, and the money, when received, is to pass into his hands, and be disbursed by him. * * PEOPLE ex rel. DRAKE v. REGENTS OF UNIVERSITY OF MICHIGAN. (Supreme Court of Michigan, 1856. 4 Mich. 98.) This was an application by the relator, who was a private citizen of this state, for an alternative mandamus against the Regents of the University of Michigan, founded upon his affidavit, which set forth that he was a citizen of this state, that there was, at the time of filing his affidavit, no Professor of Homoeopathy in the Department of Medicine of the University, that the Regents, whose duty it was, had not only neglected and refused (although often requested thereto) to elect such Professor, but still neglected and refused so to do. The law, upon which the application was founded (Sess. Laws 1856, p. 234), provides: "That the Regents shall have power to enact ordinances, by-laws, and regulations for the government of the University, to elect a President, to fix, increase and reduce the regular number of Professors and tutors, and to appoint the same, and to determine the amount of their salaries: Provided, there shall always be, at least, one Professor of Homoeopathy in the Department. of Medicine." WING, J.27 The first objection is predicated upon the alleged incapacity of an individual citizen, who is only interested in common with all other citizens of the state in the subject-matter of complaint, to institute a proceeding of this kind against a public corporation, 27 Only a portion of the opinion is printed. |